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rr question will be back, that they're just picking it down the pike and they'll have to revisit it or will want to? >> well, i think, you know, this is a conservative movement issue. >> this is a conservative movement issue. it's not just an issue that happened to drop out of the blue, so there are people with a real vested interest in undoing section five, and there are
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jurisdictions that will seek to bail out under this, you know, bigger bailout provision, and they will fail to get a bailout, and that will give them standing to come back in because it's hard to bail out even under the expanded jurisdiction. >> it may be a movement issue, but it's interesting how overwhelming the vote in congress for renewing the action was i think for 25 years. in the old days it was five years at a time. >> it's renewed for 25 years, yeah. >> i think in the senate there were no dissenters, as i recall, only a handful of representatives, so apparently -- >> that's the vote when it's unconstitutional. it's always unanimous in the senate. >> okay. [laughter] >> i mean, well, the opinion has led -- a number of people have interpreted the opinion as saying to congress, you know, okay, now the ball's in your court and amend the section 5
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extension either limit the covered jurisdictions or revise them or make them somehow congruent with, you know, issues on the ground today limit them where there are demonstrated problems, and that is a complete can of worms. of course, one of the arguments the reason there are fewer demonstrated problems now with minority access to the vote is that section 5 has sat there as a deterrent, and now in the city of burrny, a view of congress' 14th amendment power and justice thomas articulates this in his dissenting opinion, prof lax sis is outside congress' authority. congress has authority to remedy, not to deter. so it's a fascinating issue, and i don't think congress is institutionally capable of
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satisfying the supreme court no heart what the supreme court says and no matter what congress does. i think the issue will come back and be joined either by this court or by the roberts court as it evolves over time. >> linda, thank you. let's move now to another area of the court's doctrine. this is an area which has been very prominent in the present term,s and that the question whether state tort lawsuits are preempted either by federal statutes or by the actions of federal agencies, and that's surfaced in two very important cases this term. and ted olson, would you like to take us into that? >> i'd love to do that. i know preemption's very much on your mind out there. [laughter] >> it's a saturday morning issue. [laughter] >> i'd like to say a word or two about the civil rights cases. >> okay. >> but very briefly. john roberts, chief justice roberts in the earlier voting rights case and i think it was
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his first term said something, and it's a sordid business di i having this up -- divvying this up by race. and in the louisville and seattle cases he said the way to end discrimination on the way sis of race is to stop discriminating on the basis of race, so he feels pretty strongly about that, and he's got some colleagues on the court that feel pretty strongly about it too. i have a feeling about the narrowness of the northwest austin decision, it was one of those april argues where there isn't very much time to get everything done. they've got to be done by the end of june. the strip search case which, i guess, we're going to come to later was also a late april argument, and the oral argument tenor was a whole lot different than what the decision came out. and you look at those two cases that looked like they were compromises because it might have been hard to achieve a five-vote majority and write a powerful opinion sweeping
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broadly, and so the court found a narrow ground in each case, in the strip search case which we'll get to, the conduct was unconstitutional, but the school district wasn't going to be -- the individuals weren't going to be liable for it, so everybody won. so that could have been part of it. and one of the things in the oral argument that bothered justice kennedy and the chief justice and, i think, some other parts of it was that that section of the voting rights act treats different parts of the country differently, i mean, and it bothered at least in the questioning some of the justices. well, you mean to tell me that certain parts of texas behave differently these many years later, and is there any evidence of that notwithstanding the vote in congress? i think it bothered some of the justices, and i do think we'll come back about having different standards for different parts of the country which may have been based more in fact some years ago than now. and the other thing that's going
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to come back that we'll see perhaps in the ricci case is the debate between the justices with respect to the level of scrutiny, strict scrutiny versus some reduced level of scrutiny in race cases where the motive may be said to be good discrimination. like, for example, in the school cases the effort to continue to have integrated school z as o positived -- as opposeed to selecting people because of bad motives. so that may come up in this ricci case that we'll see on monday. so that's something to watch because that's sort of an underlying, overarching theme with respect to the racial discrimination cases. you asked about a conservative court, and linda mentioned this, the number of dissenting votes.
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it's true with respect to the number of dissenting opinions to. the four liberal members wrote dissenting opinions 50 times, and the five so-called conservative justices wrote dissenting opinions less than half of that, 23 times. so there's something that's, that's reflective of how conservative it is. people can argue about particular cases, but certainly in terms of the outcome there's quite a disparate allocation there. now, preemption that you've been waiting for so much. the court had three preemption cases, and it really is important because it has to do with the allocation of government power between the federal government and congress and the agencies of the federal government and the states. the three cases wereal try v. good, and cuomo vs. clearinghouse. that's one of those three cases
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that's going to be coming down on monday, so we don't know much about that. al try ya vs. good required certain language to be on cigarette labels advertising preempted state laws that would provide the opportunity to sue tobacco companies for misleading labeling or advertising. the statute said in order to have a uniform national policy with respect to the advertising or promotion of cigarette products, prohibitions or requirements by states on the advertising and promotion of cigarettes based upon smoking and health will be out, you know, they will be precluded. this case altria vs. good case argued that cigarettes were misleading. people smoked those cigarettes in such a way that they actually
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got potentially more tar and nicotine than the regular cigarettes so that the idea of advertising them as light was misleading. the tobacco company said, yeah, but those sort of suits are barred, and the supreme court in a 5-4 decision written by justice stevens said, no, they're not. that prohibition, that explicit preemption provision in the cigarette labeling act goes to prohibitions based upon smoking and health. and what the lawsuit was based upon was the unfair practices act of the state of maine, i guess it was, that prohibited deceptive advertising. so justice stevens reasoned that that wasn't based upon smoking and health, that was just a prohibition of deceptive advertising. now, i'm going to mention in a minute how much this has changed. we're really on a teetertotter with respect to when things will be preempted, but i'll mention the other case, the wyeth case. the cigarette labeling case was an express preelse case because
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the congress had a specific statute covering preemption 6789 the wyeth case had to do with the marketing of pharmaceutical, and the pharmaceutical company was being sued for failure to warn which allowed a medical practitioner to administer the drug in a way that caused very, very serious injuries, and the pharmaceutical company said the process by which the labeling of pharmaceutical products and warnings is all arranged according to a process through the federal food and drug administration, and we had to label the product -- labeling was approved, and it had to be labeled that way, and if you start having every different state through tort cases decide what the labeling should be, that undermines the uniformity of the expert judgment of the food and drug administration.
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and another decision by justice stevens, this one was 6-3, the court held that there was not an implied preemption because of the labeling requirements of the food and drug administration. justice, justice thomas added a comparing opinion saying i just don't believe in this implied preemption at all. if we're going to hold that the federal government can do something to prevent states from regulating something, congress is going to have to be specific about it. we're just not going to assume that the states don't have power to do this sort of thing. the issues that these cases bring up that go in first with respect to what are the words used by congress to cause the preemption, the court goes into great lengths distinguishing between preemption because of the claim is based upon a certain time of conduct, or whether it relates to a certain type of conduct and whether that
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choice of language by congress -- and there's very little debate ever about which actual words are going to be used -- how much difference it will make. and then whether or not there will be a preemption based upon a broad, general prohibition like an unfair labeling act or unfair practices act or whether or not it has to be specific. so the court's going back and forth about that. i'll just make this one final, two final points. if you really want to figure out what's going on with respect to presense, and it goes back and forth and up and down like this, all you have to do is track the opinions of justice stevens. it's really quite amazing and quite brilliant. the earlier cigarette-labeling case was a case calls chip alone, it was a 4-1-4 decision with justice stevens writing the four with a concurring opinion. then the court went to a phase where they were looking at preemption in the context of the
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airline deregulation act, and there were two rather strong preemptions, upholding preemption, both of which justice stevens dissented. then the court came along with a medical advice case where it was 4-1-4 again with justice stephens writing the plurality opinion, then there was another case involving the cigarette ads and billboards, then there were a couple of cases that struck down preemption involving pesticides in one case and outboard motors in another. justice stevens wrote the opinions in both of those cases. and then last term in a case called regal v. medtronic it was a pro-preemption opinion, but justice stevens didn't like it but concurred and pointed out
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why it didn't undermine the previous opinions he had written. and then this term comes along, and he has the majority vote in these cases. if you're a practitioner, and i argued a couple of these cases, you have no idea what's going to happen with preemption unless you can figure out some way to persuade enough somewheresties somewheresties -- justices to outway justice stevens. and i'll make one final point. >> okay. >> the obama administration, the president issued an executive order instructing agencies to go through all of their regulations and scrub them clean of any ambiguities. in other words, don't write regulations saying your conduct here preempts the state tort suits unless it's fairly clear. so those will be, those regulations will affect what the future decisions are going to be. >> john, you wanted to jump in on this. >> yes, so i'd just follow up on ted's point. i think it is very crucial to
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understand what the agencies are doing because in some respect both of these cases suggest at least in the impolice sit -- implicit redeposition area they could have come out if they had actually deliberated on the issues relevant to the case. for instance, in wyeth vs. levine, if they had taken account of the particular risks and decided that despite these particular risks, this is the way the warning really should be, if they actually had in the altria case talked about what the required cigarette companies to put certain kinds of nicotine amounts on their labels, then i think the court would have come out differently because we actually would have had the liberation of the expert agency. and i think that changes the preemption calculus because then there's the concern that we don't want to have juries
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overruling the expert agency. it's also because we'll have a decision in a national market, we'll actually have deliberation that this is the best way to proceed. on the other hand, if we don't have substantial deliberation by the agencies of the government, the danger is that the court because people have simply failed to deliberate, then what preelse becomes is a kind of laissez-faire. even if we haven't had the democratic process even through the agencies deliberate because congress has passed the statute, no, we're going to interpret silence to mean the market controls. and i think this court which often has been said to be a pro-business court isn't willing to go that far, to think that silence is a kind of principle of laissez-faire. but i think it's important to understand that these preemption
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cases still allow a lot of ability for the agencies to deliberate and so preempt the states. but as ted suggested, i think the obama administration may require the agencies not to preempt and, therefore, allow even more room for states to regulate. >> john, thank you. quick comment. >> just quickly to elaborate on what john and ted said about this very interesting, the pharmaceutical labeling case, what really was the problem here is that the fda had long taken the view that a federal label was simply a floor, not a ceiling, and the states could regulate through their tort systems within that. the bush administration changed that position in a preamble to a regulation. not through notice and comment or anything, and made that the new policy. and justice stevens says in the wyeth opinion that this change is entitled to no deference under chevron. no deference. it was really extraordinary, the
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supreme court reaction to that kind of administrative lapse. >> there's one justice as i answered in my question about deference, right? no deference. now, let's move on to an area which is, of course, year in and year out a staple of the court's docket, criminal justice cases, especially 4th amendment cases regularly appear, and i thought for a discussion of that, jan crawford greenberg. >> thanks, dick. we have quite a few, obviously, as you would expect 4th amendment cases this term as we do every term, and so those are in your materials, but instead of just going over every single one some of which are while interesting factually, are not that ground breaking. i'm going to pull out a few that i think are most interesting and also touch on the broader themes that dick was talking about when we first got this panel discussion started. in the first case, of course, is going to be the stafford vs. redding, the strip search case
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that you guys probably saw the coverage of, i hope you did, and maybe you saw it on abc news -- [laughter] thursday. that involved this girl who was 13 years old out in arizona, medical school student, and a fellow class mate suspected her, accused her of having drugs, prescription strength ibuprofin so the assistant principal took her down, she denied she had it, denied she'd given this girl drugs, and the principal took the next step of asking her to go into an adjoining office while a school secretary and nurse asked her to disrobe and to take her clothes off and then pull out her bra and panties so that they could examine her body for this prescription-strength ibuprofen. the girl then got dressed, she was very upset and sat outside until the end, sat outside the
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office until the end of the school hour. the school never called her mother. her mother learned about this when she got to the school and was furious. and upset. and decided to file a lawsuit against the school district and the school officials arguing, of course, that that search violated her daughter's 4th amendment rights to be free from unreasonable searches and seizures. the girl, savannah, won in the 9th circuit which also ruled that the school officials were not protected by qualified immunity, that they would have to pay her monetary damages. so not only was that search unreasonable, but it was so unreasonable that they are going to be on the hook for paying savannah damages. it then went up to the supreme court, and in a decision this week the justices ruled that the search was, in fact, yes, it was unreasonable, but that the law
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was not clear enough on the issue. and so the school officials were not going to have to pay her damages. as ted mentioned, during the the -- so this was kind of, i think, a reasonable approach that both sides really could live with. savannah wins this moral victory on an issue that was enormously upsetting to her. she ended up dropping out of school, there was, of course, discussion during the oral argument about how adolescents are so vulnerable, these, you know, girls at that age in these kind of situations, and it really affected her quite badly. so she felt vindicated, she said, after this ruling. but then the school officials also are off the hook for damages here, and the court in its decision issued a new rule that said basically before school officials are going to do this kind of intrusive search, they've got to have some kind of
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belief that there's a real danger to students and that these drugs are actually contained in a student's underwear. you know, this all came out during the oral argument that, you know, they were looking for ibuprofen. you know, it wasn't heroin or a handgun. so, you know, the dangerousness justice souter really got at at the oral argument, and that was reflected in his majority opinion for the court. now, ted mentioned that this argument was a little different than the way this decision came down, and it's just, there's just no question. going into that argument, like i said, i think most people thought they probably split the difference and ruled like they did, but when we got into the argument, the justices were so skeptical in many ways of the girl's arguments. justice breyer went off on kind of this long discussion about how is this any different than, you know, going and changing in the locker room? kids do that, i did that, and he
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made some joke that, you know, didn't quite go that well for him. [laughter] you know, it's like what's the big deal was base create their point, and it was only -- basically their point, and it was only justice ginsberg who was forceful and indignant and increasingly outraged as this argument went on that her colleagues just didn't get it. you know, they just didn't get it. they didn't understand how intrusive and how upsetting this could be. they hadn't been a 13-year-old girl, she had, savannah certainly was there, her case before the court. so we all thought, i mean, most people thought and really when they said, when the chief announced on thursday that we were going to have this decision, you know, i'd set up because i was ready for another one of justice ginsberg's, you know, quite stinging dissents that she was going to read from the bench. and instead justice souter announced this very reasoned, careful opinion that got eight
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votes for the underlying proposition that the search was unreasonable and zeb votes that the -- seven vote that is the school officials were entitled to qualified immunity. so when linda and ted were talking about, you know, we don't really know and so much of it is speculating, we were talking about the consensus possibilities in the voting rights case, you know, we -- i would love to know what happened between that argument and that decision. i do know that publicly justice ginsberg gave quite an amazing interview on the record with the u.s. todd's joan cue pick in which she talked about this case and said essentially they don't understand. and when i talk, they don't listen to me. she's referring to her colleagues on the court, so if you missed it, go do a google search and get it. >> she said that after the argument. >> after the argument. >> she was saying my colleagues don't get it, and then when the
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decision came down, they apparently had gotten it. >> exactly. [laughter] so this goes to, obviously, some of the things that we were talking about, some of the things that dick was pointing out, the role of a justice, unique role of a justice on the court. now, maybe they were just playing devil's advocate during the argument, you know, maybe they were all going to go along with this, or maybe it was justice ginsberg's really forceful position in this case that actually did change some minds and end up with this result because that is, i mean, she is bringing that different perspective, and we certainly saw it a few years ago in the led better case when she issued that dissent on the bench when an alabama woman tried to sue goodyear for sex discrimination. we've seen this kind of conversation about whether or not a woman makes any difference on the court, and those of you
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who followed the sotomayor nomination already, i know one of the major sources of criticism and controversy that's been targeted at her from republicans and conservatives are a series of speeches that she gave where she suggested that a woman or a wise latina can actually reach a better result, a better result than a man. and she goes on in one speech to say a better result can be a more caring and a more compassionate result. well, of course, you know, that's caused, like, people have just gone crazy, that that's not appropriate and judges should look at the law and not bring in personal experiences, so it's been, i think, a quite fascinating debate on the role of a woman and contrasting it. sonia sotomayor has actually in her speeches taken issue with justice o'connor's, and, you know, i know those of you who have heard her speak about this, she frequently will say that a wise man and a wise woman will reach the same result at the
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end. sotomayor has said she doesn't agree with that, that she thinks that a woman can actually reach a better result. i actually have thought that -- >> jan, let me ask -- >> outside the law maybe women do have better thoughts on many things. [laughter] >> once you've tried to explain the opinion and you've now got this advice to the country, assuming it's the job of the supreme court to try to clarify what officials at the school level are -- >> oh, you don't want to talk about women on the court? you want to talk about schools? >> i'm just curious to know what do officials now do faced with this opinion? do they just stop strip searches altogether? >> no, no, no. and i think justice souter wrote a pretty careful opinion because the schools really wanted some guidance. as the chief said in his conversation with judge wilkinson on some of these issues, you know, you don't always want to be looking to the supreme court, but the law in some of these places is pretty unclear. obviously, the court in this
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case in some states, certain in fact, have gone on to outlaw all strip searches. but in this case the court put limits on strip searches, as i said, you had to have basically a really good reason and really good suspicion they're going to be in their underwear and ibuprofen is cannot a good reason. but it gives schools flexibility when there is real danger to students if there's an urgent danger, they can still do it. a lawyer for the school boards' association told us, you know, that they were worried, that he would have preferred justice thomas' dissent which gave schools quite a lot of deference to do this kind of searches, but at the end of the day it would a pretty narrow line. so anyway, that's kind of the implications of that. >> but don't they if they're wrong and they do the search, they now get sued? >> right, because now the rule
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is clear. we're going to talk about qualified immunity, john's got a couple of cases he's going to be talking about, but right, school officials now are on notice that you can't do the kind of strip search that school officials did in stafford, arizona, and in seven states you can't do any kind of strip search because the legislatures have outallowed it. but at any rate, you know, the bigger theme which, i'm sorry, i know i'm getting off on a tangent here, but the bigger theme about the role of a justice, and i think ginsberg obviously made some difference in this case. and in covering the court over the years, i mean, you will see whether sotomayor's right or whether o'connor's right, there's no question that a justice's perspective, obviously, as all of you know from either appearing before the court or being on the court, an appeals court, your perspective and experiences can make a difference. and one of my favorite cases was one that justice
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